State v. Bernard Anderson

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON FILED DECEMB ER SESSION, 1998 April 23, 1999

Cecil Crowson, Jr. Appellate C ourt Clerk

STATE OF TENNESSEE, ) C.C.A. NO. 02C01-9710-CR-00394 ) Appellee, ) ) SHELBY COUNTY V. ) ) ) HON. W. FRED AXLEY, JUDGE BERNARD T. ANDERSON, ) ) Appe llant. ) (FIRST D EGRE E MU RDER )

FOR THE APPELLANT: FOR THE APPELLEE:

LEE WILSON JOHN KNOX WALKUP 200 Jefferson Avenue, Ste. 800 Attorney General & Reporter Memphis, TN 38103 DOUGLAS D. HIMES Assistant Attorney General 2nd Floor, Cordell Hull Building 425 Fifth Avenu e North Nashville, TN 37243

JOH N W. P IERO TTI District Attorn ey Ge neral

EDG AR PE TER SON , IV Assistant District Attorney General Criminal Justice Center, Suite 301 201 Poplar Avenue Memphis, TN 38103

OPINION FILED ________________________

REVERSED AND REMANDED

THOMAS T. WOODALL, JUDGE

OPINION The Defe ndan t, Bern ard T . Ande rson, a ppea ls as of r ight from his conviction

for first degree murder in the Shelby County Criminal Court. Following the sentencing phase of the trial, the jury sentenced the Defendant to life imprisonment without the poss ibility of parole. Defendant asserts the followin g issue s on a ppea l:

I. Whether the trial court erred by d enying D efenda nt’s motio n to suppress and allowing Defendant’s statements to the police to be admitted into evidence;

II. Whether the trial court properly admitted Defe ndan t’s prior conviction for theft;

III. Whether the trial court properly admitted certain photographs which Defendant alleges were more prejudicial than probative;

IV. Whether the evidence was su fficient to convict Defendant of first degree murde r;

V. Whether the evidence was sufficient to impose life imprisonment without the possibility of parole based upon the aggravating circumstance that the murder was committed during the commission of a robbery; and

VI. Whether the trial court erred in admitting evidence of “other crimes” through Defendant’s statements to the police.

Based upon the erro neous ad mission of D efendant’s state ment of Jan uary 11, 1995, to the p olice, w e reve rse the Defe ndan t’s con viction a nd rem and fo r a new trial.

A pretrial hearing was held on September 14, 1995, to determine whether three (3) statements, taken on October 10, 1994, January 9, 1995, and January 11, 1995, should b e supp ressed pursua nt to Defendant’s pretrial motion . Otis Stew art, the chief in vestiga ting offic er in the Homicide Division, was assigned to the murder of Gregory Harris. Information given to the police pointed to the Defendant as having a prior altercation with the victim. On October 10, 1994, Defendant appeared

-2-at the police station to provide a witness statem ent. Defendant was accompanied by an atto rney, F orrest Dura nd, wh o had not as yet bee n retain ed to represent Defen dant. Defendant was not given his Miranda rights prior to giving his statement as Stewart explained that he was not a suspect at that time. Defendant gave a nine (9) page statement in which he denied any involvement or knowledge regarding the murder of the victim. Defendant instead related that the last time he had spoken with the victim was on September 24, 1994, three (3) days prior to his murder on September 27, 1994. Durand was prese nt durin g the e ntire tim e in which Defendant gave his statement, and Defendant and Durand left after the Defendant completed his statem ent.

Stewart received further information that Defendant was involved in the murder of the victim and asked him to com e in for questioning in January 1995. On January 9, 1995, Defendant and Durand again appeared at the police station for an interview. Defendant was advised of his constitutional rights and then initialed a written waiver of his rights at 3:30 p.m. After conferring with Durand, Defendant gave an oral sta temen t. At 5:20 p.m ., the Defe ndant w as aga in advised of his rights and then s igned a written waiver of his rights. Stewart recalled that Dura nd wa s “in and out” during the course of the interview.

In this five (5) page statem ent given to police o n January 9, 1995, Defendant admitted that he was involved in the murder of the victim. On September 27, 1994, Defendant beeped the victim, knowing that Robma W illiamson intended to kill the victim. Defen dant w as living with Williamson and Williamson’s family at the time. Defendant arranged for the victim to give them a ride. After being picked up by the victim outside o f William son’s ho me, the three (3) drove to a rural area of Shelby

-3-Coun ty where Williamson shot the victim tw ice. At th e con clusio n of his statem ent, Defenda nt was taken into police custody.

On January 11, 1995, Stewart got Defendant out of h is jail cell a t 1:30 p .m. in order to clarify some things regarding his prior statement. Stewart recalled that Defendant was allowed to telephone his father, Darrell Anderson, at 1:35 p.m. Defendant was again advised of his rights and signed a written waiver. Stewart stated that D efend ant did not ask for his attorney, nor did Stewart attempt to contact Durand. In this final and third statement to the police, Defendant stated that he actually sh ot the victim based upon th e victim’s d isrespec t toward h im.

Defendant also testified at the hea ring. He recalled that on October 10, 1994, Durand accompanied him to the police sta tion an d the p olice a dvised him o f his rights. On January 9, 1995, Durand again accompanied Defendant to the police station. During the course of the intervie w with the police, Du rand left for a period of twenty-five (25) minutes. Although the police did call Durand as requested by Defendant during Durand’s absence, he claimed the police continued to question him. Both Defendant and Durand were given the opportunity to read the statement prior to Defendant signing it. Defendant stated this statement was given freely and voluntarily.

On January 11 , 1995, Stewa rt retrieved Defendant from his jail cell in order to “clear u p” his p reviou s state men t. Defe ndan t testified that he requested the presence of his attorney on three (3) occasions, but that Stewart refused each request. Defendant also did not recall being advised of his rights, although he did sign a “telephone waiver” (form which docu ments D efendant’s req uest for a

-4-telephone call), prior to his statement even though he did not ca ll his father until the statement had been completed. Defendant stated that he gave this third statement because he “was sca red of what m y charge pa rtner might do to [him] or what the officers probably would want to do to [him].” Defendant did read the statement before h e signed it.

Forrest Duran d testified that on October 10, 1994, he was only assisting Defendant at Defendant’s brother’s request. Defendant was only interviewed as a witness that day, but Durand was certain that he was not present when the statement was typed up. On January 9, 1995, Durand represented Defendant, although he had not as yet been paid a retainer fee. After being present during a portion of the interview, Durand left with the impression that the police were through and were drawing up charges. Durand returned to his of fice, bu t at app roxim ately 4:15 p.m. he received notice that Defendant was giving a statement. Durand recalled that he was “s tunne d and shoc ked” w hen h e rece ived the message. Durand return ed im med iately to the police station, although he believed that some statem ents were given be fore his return. Durand was present at the conclusion of the statem ent, followin g which he and Defen dant sign ed the sta temen t. Durand was not notified or even aware of the third stateme nt given by the D efendant on January 11, 1995.

In its ruling on the m otion to suppress, the trial court found that on January 9, 1995, Defendant came to the police station with his attorney at approximately 3:00 p.m. Specifically, the trial court made the following findings:

After discussion w ith the police and [D efendant], [Defe ndant’s attorney] left the police department. Anderson was advised of his rights at 3:30 that afternoon and initialed an acknowledgment form which described those rights. Anderson requested a second conference w ith Mr. Durand before answering any questions or making a statem ent.

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Mr. Durand was called and returned to the police department. At 5:10 p.m. Anderson was again advised of his rights and signed the advice of rights and waiver of rights forms used by the Memphis Police Depa rtment. At 5:23 p.m. Anderson was told that he was un der arres t, that he might be charged with first degree murder, and, after he acknowledged understanding the rights which w ere aga in explaine d to him, Anderson began to give his second statement. Anderson admitted calling Gregory Harris with full knowledge that he was to be murdered and accused Robma Williamson of shooting the victim. The statement ended with the following:

Q: Is your attorney, F orest Du rrand, pre sent du ring this state ment? A: Yes sir. Q: Is this statem ent given freely and truthfully, withou t any threa ts or promises? A: Yes sir. Q: I will ask you to read over this five page statem ent, an d if you fin d it to be true and correct given by you, I will ask you to initial the bottom right hand corner of the first four pages and sign your name, date and time on the lines provided below. Do you understand? A: Yes sir.

(Emph asis added ). The trial court further noted that the Defendant initialed each page of the statement and signed it at 6:16 p.m. on January 9, 1995. Defendant’s attorney also signed the statement as a witness.

At trial, the S tate be gan its eviden ce with the testimony of Robert Harris. Harris, the victim’s father, testified that in September 1994, the victim was living at home with his parents and working for Federal Express. On September 27, 1994, the victim left his home to go to work and Harris never saw the victim alive again. Police officers came to their home early in the morning hours of September 28, 1994, to notify th e fam ily of the vic tim’s d eath. H arris went to the morgue and identified his son. Harris recovered his son’s personal property from the police, including lighters, a sm all knife, a comb, a compact, a tube of chap-stick, a be eper, two (2) ring s, and on e (1) pen ny.

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Patric ia Harris, the victim’s mother, testified that her son and the Defendant had known each other since elementary sch ool. On S eptem ber 24, 1 994, prio r to leaving for work, Mrs. Harris gave the victim approximately $10.00 when he asked her if she had any m oney. Because she had a headache, she laid down in her bedroom. When she arose, her son and Erby Pritchard were there. Around 5:45 p.m., the victim came into her bedroom and asked what they were going to eat for dinner. After replying that she did not feel well because of her headache, she told him sh e would not be co oking. T his was th e last time she saw the victim a live.

On September 28, 1994, at approximately 2:00 a.m., a police officer arrived at her home and they advised her of the victim’s death. The Defendant telephoned her home and asked what he could do for their family d ue to the v ictim’s dea th. Mrs. Harris estimated that the Defendant called two (2) or three (3) times that day. She explained on cross-examination that the Defendant had been barred from their home and she could not say that the victim and the Defendant were friends at the time of the victim’s death.

Dr. Thom as Fran cisco is the medic al exam iner for Shelby C ounty, and he performed the autopsy of the victim on September 29, 1994. His examin ation revealed that there were two (2) gunshot wounds to the head that were “near-gunshot wounds,” meaning that the powder was deposited on the skin itself. As the range of fire was found to be “loose contact,” he stated that the muzzle was not tight against the head but was close enough that the soot and powder and stipling were deposited on the skin adjacent to the area. Dr. Francisco described that with loose contact gunshots, the muzzle of the gun was probably touching the body upon firing. Dr. Francisco described the damage to the victim’s brain as the skull being fractured,

-7-with a tearing of the brain stem itself, resulting in almos t instantan eous d eath. Bo th wounds were fatal, allowing less than a minute for the victim to die as a result of the gunsh ots.

Erby Pritchard testified that he was friends with the victim. On September 27, 1994, the victim came to Pritchard’s home, driving his turquoise Mazda Protégé, and they rode around the neighborhood for a while. After going to the victim’s home, the two (2) left ag ain in the victim’s Protégé and drove over to the Fellow Homes area in search of marijuana. Pritchard purchased a “dime sack” of marijuana for $10.00 and they rolled up a joint and then shared it. The victim stopped by Captain D’s and purchased a fish sandwich, the n told Pritchard that he had to go take care of some business and wo uld drop him off. Prior to leaving his home, the victim had received a page from “Bernard.” W hen Pritchard asked if he could go along with the victim, the victim indicated that he had some business with “Nard” that he was going to take care of by him self. Later th at evenin g, Pritcha rd stated that he called the victim ’s home and paged him to find out if he had returned and never received a response.

Robe rta Wilkins lives at 1774 West Raines and was seventy-five (75) years old at the time of the trial. She lived by herself in her home which is near the intersection of Raines and Sewanee. On September 27, 1994, she called her son and asked for him to c ome a nd take her to the grocery store. An hour later, she heard a “rumbling” noise outside. Mrs. Wilkins got up and looked out her front door, towards the corner of Raines and Sewanee. She estimated the time to be appro ximate ly 7:30 or 8 :00 p.m . She could see the top of a little car and saw one (1) person moving around the car who looked to be a black male. Mrs. Wilkins saw the figure walk across the road, come back to the car and get in and then drive up

-8-Sewanee Road. When her son arrived, they drove to Kroger and she told him what had happened. On their way home, they stopped at the intersection of Raines and Sewanee. Her son got out of the car because he had observed what first appeared to be a “paper or box” on the side of the road. The police drove through the area and her son asked them to stop because he thought he had found a body. Mrs. Wilkins did not look in the area of where the body was found.

W illie Wilkins, Mrs. Wilkins’ son, testified that on September 27, 1994, he took his mother to the grocery store. On their way home, they stopped at the intersection of Raines and Sewanee because he saw “something like some eyes shining.” When Mr. Wilk ins go t a little closer, he observed a pack of dogs and then saw a body lying there. Wilkins sat in his car until a police officer d rove b y and th en ad vised h im that there wa s a bod y lying in the g rass.

Bobby Jones, an officer with the Memphis Police Department, was on duty on September 27, 1994. He was called to the intersection of Raines and Sewanee at approxim ately 11:3 0 p.m. When he arrived, he saw a body lying on the north side of the road. Jones could not at first identify if the body was that of a m ale or fe male as there was a jacket around the head and the victim’s shirt was partially pulled up to the rib cage. T here we re no sign s of life and th e body w as actua lly stiff. Jones secured the scene w hile waiting for officers to arrive an d assist h im. He recalled that the victim had two (2) rings on his left hand.

C.B. Hatch el, ass igned to the c rimina l crime scen e bure au of th e Mem phis Police Department, recounted his investigation of the scene on September 27 and 28, 1994 at the intersection at Raines and Sewanee. He observed the victim’s body

-9-in a grassy area to the northwest. He took photographs and drew sketches of the body. A comb, some chap-stick, one (1) penny and a beeper were found scattered about in the g rass n ear the victim’s shoulder. A powdered compact was found in the victim’s right rear pocket. From the photographs he took, Hatche l identified a picture of the victim in which his pants pockets are turned inside out. The photographs also demonstrated that the victim’s coat was pulled up over his head.

Sergeant Otis Stew art of the M emph is Police D epartm ent works in the Homicide Bureau and was working there on September 28, 1994, when he was assigned to this case. After talking with E rby Pritcha rd, Stewa rt began to investiga te the Defendant as a possible witness. The police contacted the Defendant and asked him to come in as a possible witness. The Defendant came to the police station on October 10, 19 94, ac com panie d by an attorne y, Forre st Dur and. D efend ant’s Octob er 10, 19 49 statem ent was read to the jury.

While continuing their investigation, the departm ent rece ived mo re informatio n linking the Defen dant an d Rob ma W illiamson to the victim ’s death. The Defendant was again requested to come to the police station on January 9, 1995, and he ag ain showed up with his attorney Forrest Durand. Because Defendant was now a potential suspe ct, he was advised of his rights prior to his interview. Defendant read and executed the waiver of rights form in his attorney’s presence. Sergean t Stewart described that Attorney Du rand was “there partially through most of the oral interview.” He read this second statement to the jury. Sergeant Stewart recalled that Forrest Durand came back into the interview room just as Defendant was readin g over his statem ent and preparin g to sign it. Durand witnessed the signing of the statement, then the Defendant was arrested.

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On January 11, 1995, the Defendant was a gain advised of his Miran da rights and brought in for questioning. Prior to the questioning, Defendant signed a “telephone waiver” and called his fa ther, Darrell Anderson, at 1:35 p.m. At 1:40 p.m., the Defendant signed an “Advice of Rights” form which acknowledged that he had been advised and had waive d his rights. Sergeant Stewart noted that Defen dant’s lawye r was n ot pres ent an d that D efend ant did not req uest h is attorney’s presence at any time during the questioning. As described above, the conten ts of such statem ent was read into e vidence for the jury.

This wa s the clos e of the S tate’s cas e-in-chief.

The Defe ndan t testified on his own b ehalf. D efend ant de scribe d his relation ship with the victim as “best friends,” seeing each other nearly every day of the week. Defendant denied killing the victim, stating that Robma Williamson actua lly killed him. Defendant also denied any knowledge of luring the victim to the car so that Robma Williamson could commit murder. He indicated that any statem ents which indica ted he did ha ve kno wledg e of W illiamso n’s intent had been added into his statements without his knowledge. He had been in jail for appro ximate ly sixty-four (64) hours when the police came in to retrieve him for questioning on January 11, 1995. Sergeant Stewart took him from his cell without telling him anything and accompanied him to a conference room where another man was waiting. Once inside the conference room, Stewart advised him that he was there “to clear up a few matters in the statements that [he] gave in [his] previous statem ents on the 9th of January.” Defendant again stated that he was not advised of his rights prior to giving a statement on January 11, 1995. It was only after giving his statement that Defendant recalled being given the “Advice of Rights” form which

-11-he signed. Prior to giving his statement, Defendant asked for his attorney on three (3) sepa rate occa sions, bu t was de nied that rig ht each time.

Defendant stated th at he paged the victim to ask him fo r a ride to a friend ’s house. The victim agreed and, after g oing to D efenda nt’s friend’s h ome, Robma W illiamson left with them . Defend ant reca lled that wh en the victim stoppe d at the intersection of Raines and Sewanee, Williamson suddenly shot the victim in the head. Defendant stated he had no ide a of W illiamso n’s inte ntions to kill the v ictim and tha t William son later th reatene d to kill Defe ndant if he told anyo ne.

On cross-e xamina tion, Defe ndant admitted to m any inc onsis tencie s within his statements. He did admit to a prior conviction of theft on January 26, 1993 to which he pled guilty.

I. S UPPRESSION OF STATEMENTS

The party preva iling in th e trial co urt is entitled to the strongest legitimate view of the evidence adduced at the suppression hearing as well as all reasonable and legitimate inferences that may be drawn from that eviden ce. State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996). So long as the greater weight of the evidenc e supp orts the trial court’s findings, those findings sh all be uph eld. Id. at 23. In other wo rds, a trial court’s findings of fact in a suppression hearing will be upheld unless the evidence prepon derates otherwis e. Id. In evaluating the correctness of a trial court’s ruling on a pretrial motion to suppress, the appellate court may consider the proof adduced both at the suppression hearing and at trial. State v. Henning, 975 S.W .2d 290, 299 (Tenn. 199 8).

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Following the suppression hearing, counsel for the Defendant conceded that Defendant admitted that as to th e seco nd statem ent, it was a freely given statem ent. The trial court then denied the rem ainder o f Defendant’s motion to suppress by written order on November 8, 1995. The trial court found that the statement of October 10, 1994, w as tak en wh en De fenda nt was not a s uspe ct nor w as he in custody. The tr ial cou rt also h eld as to the January 1 1, 1995 statem ent, that “[t]here is ample evide nce that the D efendant kn owingly, intelligently, and vo luntarily chose not to exercise his rights on the occasion of his third statement. The police were not obligated to con tact his attorney und er these circum stances.”

Howeve r, the State has since conceded in both its brief and at or al argum ents before this court that unde r the auth ority of Edwards v. Arizona, 451 U.S. 477, 484-85, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981) and Minnick v. Mississippi, 498 U.S. 146, 111 S.Ct. 48 6, 112 L .Ed.2d 4 89 (199 0), the De fendan t was d eprived of his rig hts while giving his third statem ent of Jan uary 11, 1 995, pu rsuant to the Fifth and Fourteenth Amendments of the United States Constitution.

A. S TATEMENT OF O CTOBER 10, 1994

The Defendant does not make an argument in his brief regarding the trial court’s refusal to suppress the first statement of October 10, 1994. In Miranda v. Arizona, 384 U.S. 436, 479, 86 S.Ct. 1602, 1630, 16 L.Ed.2d 694 (1966), the United States Supreme Court held that the Fifth and Fourteenth Amendments’ prohibition against compelled self-incrimination requires police officers, before initiating questioning, to advise the putative defendant of his rig ht to rem ain silen t and h is right to counsel. Specifically, Miranda requires police to inform the person being

-13-questioned that (a) he has the rig ht to rem ain silent; (b) any statement made may be used as eviden ce aga inst him; (c ) he has the right to th e prese nce of a n attorney; and (d) if he can not afford an a ttorney, on e will be ap pointed for him pr ior to question ing, if he so d esires. 38 4 U.S. a t 444, 86 S .Ct. at 161 2.

Howeve r, an officer’s obligation to administer Miranda warnings only attaches “where there has b een s uch a restrictio n on a perso n’s free dom as to re nder h im ‘in custo dy.’” Stans bury v. C alifornia , 511 U.S. 318, 322, 114 S.Ct. 1526, 1528, 128 L.Ed.2d 293 (1994 ) (citing Oregon v. Mathiason, 429 U.S. 49 2, 495, 97 S.Ct. 711, 714, 50 L.Ed.2d 714 (1977)). “Custodia l interrogation” refers to “questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedo m of ac tion in any s ignificant w ay.” Miranda, 384 U.S. at 444, 86 S.Ct. at 16 12. In the case sub judice, Defe ndan t cam e to the police station of his own free will after being requested by the police to answer some questions regarding his persona l relationsh ip with the victim . Imme diately after g iving a state ment, Defendant left the police station . Even if Defen dant d id con test this statem ent’s admission into evidence, the law in T enne ssee is such that no Miranda warnin g is required during the initial investigation by p olice where the witness is neither a prime suspect nor in cus tody. State v. Underwood, 669 S.W.2d 700, 703-04 (Tenn. Crim. App. 1984 ).

B. S TATEMENT OF J ANUARY 9, 1995

Defendant argues his second statement of January 9, 1995, to the police was erron eous ly admitte d into evidence by the trial court and should have been suppressed. Defendant contends that counsel was not present d uring the entire

-14-course of questioning and, therefore, any statement taken was in clear violation of Miranda v. Arizona, 384 U.S. at 436, 86 S.Ct. at 1602, and Edwards v. Arizona, 451 U.S. at 477, 101 S.Ct. at 1880. It is significant that following the hearing on the motion to suppress, counsel for Defendant did not argue that the second statement shou ld be suppre ssed as D efendant ha d “already said that was a freely given statement on the record.” Therefore, the trial cou rt did no t mak e a sp ecific conclusion on this second statem ent, althou gh it did m ake factu al findings. In addition to arguing the issue has been waived by the Defendant, the State argues that such statem ent wa s given freely an d volun tarily by the De fenda nt, in full unders tanding of his rights.

The voluntariness test under the Tennessee Constitution is more prote ctive of individual rights th an the tes t under th e United States C onstitution . State v. Stephenson, 878 S.W .2d 530 , 544 (T enn. 19 94). To effectively waive his rights, defendant must have personal aw areness o f both the nature of the right and the cons eque nces of aba ndon ing his rights. See Stephenson, 878 S.W.2d at 544-45. Additio nally, his statements cannot be the result of intimidation, coercion or decep tion. Id.

First, we note that the Defendant has waived this issue by submitting to the trial court that s uch state ment w as volun tary following the hea ring on the motion to suppress. See Tenn. R. App. P. 36(a). Defendant himself stated that his statement was freely and voluntarily given a nd was m ade in the pres ence of his attorn ey. Testimony from his attorney demonstrated that he was present when the statement was taken and signed the statement as a witness. In any event, pursuant to the evidence presented documenting that Defendant was both presented with and

-15-waived his Miranda rights, we cannot conclude that the second statement given by the Defendant should have been suppressed. The greater weight of the evidence suppo rts the trial cour t’s findings th at Defe ndant w as read and then signed an acknowledgment of rights form prior to giving his statement. Furthermore, Defendan t’s attorney was called when Defendant requested prior to the taking of that same statement. Both the evidence at the hearing on the motion to suppress and at trial demonstrate that the preponderance of the evidence does not fall in the Defen dant’s favo r for supp ression. T his issue is without m erit.

C. S TATEMENT OF J ANUARY 11, 1995

Finally, Defendant contends that his third statement made to the police on January 11, 1995, was taken and admitted into evidence in violation of Edwards v. Arizona, 451 U.S. at 477, 101 S.Ct. at 1880, and Minnick v. Mississippi, 498 U.S. at 146, 111 S.Ct. at 486. In Minnick v. Mississippi, our Suprem e Court held th at a fair reading of Edwards v. Arizona and su bsequ ent case s dem onstrate that “we have interpreted the rule to bar police-initiated interrogation unless the accused has counsel with him at the time of questioning.” Minnick, 498 U.S. at 153, 111 S.Ct. at 491. When counsel is requested, interrogation must cease, and officials may not reinitiate interroga tion withou t counsel present, whether or not the accused has consulted with his atto rney. Id. The State conceded both in its brief and at oral argum ent befo re this cou rt that Minnick contro ls this case and that Defendant was deprived of his rights under the Fifth and Fourteenth Amendments of the United States Constitution regarding the third statement on January 11, 1995. Wh ile there is some contradiction in the testimony of various witnesses as to whether Defendant requested couns el on Jan uary 11, 1 995, any in consiste ncies are irrelevant.

-16-Defendant invoked his right to counsel on January 9, 1995, and the police were, therefore, prohibited from rein itiating their inter rogation of him w ithout counsel presen t on Janu ary 11, 19 95. Minnick, 498 U.S . at 153.

Although reversal of this conviction is required on the suppression issue, we will also address the other issues raised by the Defendant. The State, conceding the trial court’s error in denying the Defe ndan t’s mo tion to s uppre ss his third statement to the police, filed a motion to reverse th e trial court’s judgm ent an d rem and th is case for a new trial prior to filing its brie f with this cou rt. Our cou rt, however, denied the motion finding tha t “this and other issues raised by the [Defendant] in his brief shou ld receive thorough consideration on appeal, as they may resurface upon remand .”

II. A DMISSION OF PRIOR THEFT CONVICTION

Defendant argues that the trial court erred in allowing the State to ques tion him regarding his prio r theft convic tion. W hile the Sta te agree s that the th eft conviction was not relevant to the murd er of the victim, it c onten ds it wa s certa inly relevant to the issue of the De fendan t’s credibility.

Tennessee Rule o f Evide nce 6 09(a) (3) allow s the S tate to im peach an accused if prior no tice has been given and if the probative value of the conviction outwe ighs its unfair prejudicial effect on substantive issues. Subdivision (a)(2) of Rule 609 further states that the crime m ust either be a felon y or must have involved “dishon esty or false sta temen t.” It has long b een es tablished that theft crimes involve dishone sty. See State v. Butler, 626 S.W .2d 6, 11 (Te nn. 1981).

-17-Furtherm ore, the o ffense of th eft is “highly pro bative” of cre dibility. State v. Baker, 956 S.W.2d 8, 15 (Tenn. Crim. App. 1997) (citations omitted). The State followed procedural rules, giving notice to the Defendant of its intent to impeach him with the theft conviction. Any prejudicial effect was outweighed by the probative value o f this theft conviction upon the issue of D efenda nt’s credib ility. This issu e is withou t merit.

III. A DMISSION OF PHOTOGRAPHS

Defendant contends that the trial court erred in admitting certain photographs of the victim. Specifically, Defendant objects to the admission of Exhibits 19, 20, 21, 22 and 23. In determining the admissibility of photographs, the court must first determine that the evidence is relevant to the issues at trial and then decide whether the probative value of the evidence is substantially outweighed by the danger of unfair prejudice . State v. Banks, 564 S.W .2d 947 , 949-51 (Tenn . 1978); Tenn. R. Evid. 402, 40 3. The a dmiss ibility of photographs falls within the sound discretion of the trial court, and this court will not interfere with the trial court’s exercise of discretion absen t a clear ab use of tha t discretion . State v. Braden, 867 S.W.2d 750, 758 (T enn. C rim. App . 1993); Banks, 564 S.W.2d at 949.

W e first observe that the State correctly po ints out with in its brief that counsel for the Defendant specifically agreed with the admission of Exhibits 19 and 20. Therefore, this issue is waived as to the admission of these photographs. See Tenn. R. App. P. 36(a); Teag ue v. State , 772 S.W.2d 915, 926 (Tenn. Crim. App. 1988); perm. to appeal denied, id. (Tenn. 1989); State v. Killebrew, 760 S.W.2d 228, 235 (Tenn. Crim. App.), perm. to appeal denied, id. (Tenn . 1988). H oweve r, as to Exhibits 2 1, 22 an d 23, the D efenda nt did obje ct.

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Exhib it 21 depicts the crime scene, showing that the victim’s pants pock et is turned inside out as if he had be en robb ed. This certainly wa s proba tive as to the State ’s proof to demonstrate that the Defendant killed an d robb ed the victim. E xhibit 22 is a closeup of the crime scene itself, only showing a portion of the victim’s body. Howeve r, the closeup photograph does depict the pants pocket of the victim being turned inside out an d that th e victim ’s shirt and jacket had been pulled over his head as accord ing to testim ony of the officers on the scen e. Finally, E xhibit 23 is simp ly a photogra ph from a different a ngle of the upper p ortion of the victim’s bo dy. It shows the victim’s e xposed midriff, with his shirt and ja cket pulle d over his head.

Exhibits 21 and 22 are probative to the State’s case-in-chief. Both depict the crime scene and various personal items of the victim which were identified by h is family. Also, the scene depicts the pants pocket being turned inside out to support the State’s theory of robbery and the shirt and jacket pulled over his head which was testified to by the Defendant in his second statement. The trial court w as co rrect in ruling that the probative value of these photographs outweighs any potential for unfair prejudice. The relevancy of Exh ibit 23 is questionable, in light of the fact that other photographs depict the same scene from a different angle. H oweve r, we note that none of these photographs depict a gruesome scene as the wounds to the victim are covered by his shirt and jacket, and only blood is visible. Therefore, the re was no prejudice in the adm ission of E xhibit 23. T his issue is without m erit.

IV. S UFFICIENCY OF THE EVIDENCE

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Defendant argues that the evidence was insufficient to support a guilty verdict for first degree murder. At the time of this offense, first degree murder was an “intentio nal, premeditated and deliberate killing of another.” Tenn. Code Ann. § 39-13-202 (Repe aled 19 95). A de liberate act is “one pe rformed with a coo l purpose .” Tenn. Code A nn. § 3 9-13- 201(b )(1) (R epea led 19 95). A prem editate d act is “one done after the exercise of reflection and judgment.” Tenn. Code Ann. § 39-13-201(b)(2) (Re pealed 199 5).

When an accused challenges the sufficiency of the convicting evidence, the standard is whether, after reviewing the evidence in the light most favorable to the prosecution, any rationa l trier of fac t could have found the essential elements of the crime beyond a reason able do ubt. Jack son v. V irginia, 443 U.S. 307, 319 (19 79). On appeal, the State is entitled to the strongest legitimate view of the evidence and all inference s therefro m. State v. Cabbage, 571 S.W .2d 832, 835 (Tenn. 197 8). Because a verdict of guilt removes the presumption of innocence and rep laces it with a presum ption of gu ilt, the accuse d has the bu rden in this court of illustrating why the evidence is insufficien t to suppo rt the verdict re turned b y the trier of fac t. State v. Tug gle, 639 S.W.2d 913, 914 (Tenn. 19 82); State v. Grace, 493 S.W.2d 474, 476 (Tenn. 19 73).

Questions concerning the credibility of the witnesses, the weight and valu e to be given the evidence, as well as all factual issues raised by the evide nce, are resolved by the trier of fact, not this court. State v. Pappas, 754 S.W.2d 620, 623 (Tenn. Crim. A pp.), perm. to appeal denied, id. (Tenn. 1987). N or may this cou rt reweig h or reevalu ate the ev idence . Cabbage, 571 S.W .2d at 835. A jury verdic t

-20-approved by the trial judg e accre dits the Sta te’s witnesse s and re solves all co nflicts in favor of the State. Grace, 493 S.W.2d at 476.

The victim was shot twice in the hea d, with medical evidence demonstrating that either sho t was fatal. In h is statem ents to the police of Janua ry 9 and Janu ary 11, 1995, the D efend ant ad mitted luring th e victim to pick h im up and th en driv ing him to a remote a rea so that the victim could be killed. In his statem ent of Janua ry 11, 1995, the Defendant admitted to shooting and killing the victim, both with premeditation and deliberation. The Defendant stated that he “was under a lot of stress and [he felt] that all [he had] done for him, [the victim] should have owed [Defen dant] some thing.” Wh en as ked if h e pag ed the victim o n September 27, 1994, at appro ximate ly 5:15 p.m ., with the knowledge that the victim would be lured to the Boxtown area and had the intention of killing him, the Defendant responded affirmatively. In the light most favorable to the State, this evidence was sufficient where by a rational trier of fact could have concluded beyond a reasonable doubt that Defendant intentionally killed the victim with both premeditation and deliberation.

W e note th at all evidence admitted at the trial, even if admitted errone ously, can be considered when addressing a defendant’s challenge to the sufficiency of the evidence to sustain the conv iction. See Lockhart v. Nelson, 488 U.S. 33, 109 S.C t. 285, 102 L.E d.2d 26 5 (1988 ); State v. Longstreet, 619 S.W.2d 97, 100-01 (Tenn. 1981).

V. S UFFICIENCY OF EVIDENCE TO SUPPORT AGGRAVATING CIRCUMSTANCE

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Defendant argues that the evidence was insufficient to support the aggravating circumstance of murder during the perpetration of a robbery. In order to impose a sentence o f life without parole, the jury has to find that the State proved beyond a reasonable doubt one of the aggravating factors found in Tennessee Code Annotated section 3 9-13-20 4(i). In the Defendant’s second statement of January 9, 1995, he admitted that the victim was robbed. The victim’s mother testified that she had given the victim $10 .00 earlier th at day. The photographs depic ted the victim’s personal items s trewn aro und his b ody and his pants pocke t turned ins ide out. Based upon this evidence and Defendant’s own admission, the jury reaso nably determined that the murder was committed while the Defendant had a substantial role in com mitting a ro bbery. T his issue is without m erit.

VI. ADMISSION OF EVIDENCE OF OTHER CRIMES

Defendant contends that the State was erroneously allowed to introduce proof of other crimes by virtue of his statements to the police. Rule 404(b) of the Tennessee Rules of Evidence states that “[e]vidence of other crimes, wrongs, or acts is not admiss ible to prove the ch aracte r of a pe rson in order to show action in conform ity with the chara cter trait . It may, however, be admissible for other purpos es.” The “other crimes” to which Defendant is referring were includ ed in h is statem ents to the police in which Defen dant indica ted the re was a warr ant for h is arrest for cashing one of the victim’s checks and that he had been involved in a robbery . Specifically, the statement referring to cashing the victim’s check was as follows:

Question: Wh y would Mr. Du rand com e with you today?

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Answer: My brother’s request. He had found out that I had supp osed ly cashed one of Gregory’s checks, and they a [sic] warrant for my arrest for the check.

Question: Have you cashed a check belonging to Gregory Harris?

Answer: No, sir.

Question: Is there any other reason that you b rought a n attorne y with you today?

Answer: My brother recommended me to the attorney. My brother contacted the attorney about the check. Then I told him about the talk in the street that I had killed G regory.

The other two statements to which Defendant refers include his admission that he paged the victim to ask for a ride to so meone ’s home to p ick up mon ey from a robbery .

For each o bjection th e Defe ndant ra ised, the trial court complied with the requirem ents of Rule 404(b). The court held a hearing outside the presence of the jury in which it determined the material issues and then determined that such evidence need not be excluded according to the provisions of Rule 404(b)(1),(2) and (3). Rule 404(b) allows such evidence of “other crimes” to be admitted when it is relevant to a litigated iss ue, such as identity, inte nt, or rebu ttal of accident or mistake, and its probative value is not outweighed by the danger of unfair prejudice. See State v. Parton, 694 S.W .2d 299 , 303 (T enn. 19 85); State v. Hooten, 735 S.W .2d 823, 824 (Tenn. Crim . App. 1987 ).

Although any statement the Defendant made regarding a warrant for his arrest for cash ing one of the victim’s check s was not releva nt according to R ule 404(b), neither was it unfairly prejudicial. There was never any corroborating evidence of

-23-this warrant, and the Defendant himself immediately denied cashing the victim ’s check. Pursuant to Rule 103(a) of the Tennessee Rules of Evidence, the admission or exclus ion of e videnc e is no t a bas is for error unless the ruling affects a substantial right of the accused. We find that even if the trial court did err in refusing to redact the portion of the Defendant’s statement referring to this warrant, no substantial right of the Defendant was affected thereby. In light of the convincing evidence of Defe ndan t’s guilt, an y error in the ad miss ion of this eviden ce was harmle ss. See State v. Shelley, 628 S.W.2d 436, 438 (Tenn. Crim. App. 1981); Tenn. R. Ap p. P. 36(b).

The remaining portions of Defendant’s statement to which Defen dant ob jects as admitted in error we re, in fact, ad missible as releva nt to the issue of intent. The Defen dant state d that, “I had him [victim] come to take me to pick up some money from a robbe ry.” W hen a sked if he be eped the victim know ing tha t he wo uld lure him to a rem ote are a with th e inten tion of k illing him, the Defenda nt adm itted tha t this was his intent. Clearly, this evidence went directly to the State’s theory that the Defen dant, with premeditation and deliberation, paged the victim to pick him up and then directed him to drive to a remote area where he shot and killed the victim. T his issue is w ithout me rit.

CONCLUSION

Defe ndan t’s third statem ent on Ja nuary 11 , 1995, w as admitted in error at trial. The statement of January 11, 1995 is suppressed and is inadmissible at

-24-Defenda nt’s new trial. Defendant’s conviction is reversed, and this case is reman ded to the trial court for a n ew trial.

____________________________________ THOMAS T. W OODALL, Judge

CONCUR:

___________________________________ GARY R. WA DE, Presiding Judge

___________________________________ JOHN EVERET T WILLIAMS, Judge

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